K S KRISHNA AIYAR Vs. NYNADIKKAM PILLAI

JUDGEMENT

(1.) THIS suit was brought on an arrangement, which, was made between the plaintiff and the defendant, that the defendant was to take an assignment of a decree, which the plaintiff obtained against one Ananthanarayana Aiyar, on payment of Rs. 400 in the circumstances that have happened here. Two points were taken before me in Second Appeal. The first point is that as Ananthanarayana Aiyar has become an insolvent, the defendant is not bound to accept the assignment of the decree and is not bound to pay the money due under the contract, Reliance is placed on a case reported in Jatindra Nath Basu V/s. Peyer Deye Debe [1916] 43 Cal. 999, a decision of the Privy Council. There, the decree that was agreed to be assigned subsequently became barred by limitation, as the assignor did not take steps in time to keep the decree alive; their Lordships held that as the plaintiff had agreed to take the assignment of a subsisting decree, there was a duty on the part of the decree-holder to keep the decree aline and that as he failed to perform that duty and the decree became valueless, the assignee was not bound to take the assignment That case has no bearing on the present case. Here, there is no difficulty of the decree having become barred, as to was expressly kept alive. The judgment-debtor has become an insolvent, but that does not mean that the decree has become entirely infructuous. No doubt, it may be that the amount of the money realisable in execution of the decree had become reduced, but that is no ground for saying t lat the agreement to assign has become invalid.

(2.) THE second point taken is that the plaintiff is not entitled to sue for the amount that the defendant agreed to pay, but, can only sue for damages against the defendant, for not accepting the assignment. I do not think that there is any ground for this contention. THE defendant agreed to pay for and take the assignment of the decree and the plaintiff was always ready and willing, as found by the Lower Court, to make the assignment, to the defendant. THE plaintiff is entitled to the price arranged under the contract and need not sue for damages. It may be that the recovery of the price is in the nature of a specific performance of the contact, but that does not affect the question; for, in such a contract as this, the payment of the price is the proper remedy that should be allowed. THEre is no invariable Rule that in cases relating to moveable property, damages only should be given. THE point was not taken in the first Court nor was it made a ground in the memorandum of appeal to the Lower Appellate Court. THE point, therefore, should not have been allowed by the Subordinate Judge to be argued at all. However, I consider that there is no substance in the contention. Both the points taken failing, the Second Appeal fails and is dismissed with costs.